The 4th Amendment to the U.S. Constitution gives
citizens a right to be free from “unreasonable searches and seizures”. As I have explained in prior posts, and as
Wikipedia also explains, the standard the Supreme Court has established for
determining whether there has been a “search” is the one it articulated in Katz v. U.S., 389 U.S. 347 (1967).
Under Katz, you
have a “reasonable expectation of privacy” in a place or thing if (i) you have as
exhibited an actual (subjective) expectation of privacy in that place or thing
and (ii) society is prepared to recognize that this expectation is
(objectively) reasonable. If you are
interested, you can read more about how the Katz standard is applied in the
post you can find here.
This post examines a 4th Amendment privacy search
issue that arose in People v. Evans, 2014
WL 4947060 (California Court of Appeals 2014).
Michael Shawn Evans, was “charged with possession of
material depicting a person under the age of 18 engaging in or simulating
sexual conduct, a felony”, in violation of California Penal Code §
311.11(a). People v. Evans, supra. He moved to suppress certain evidence and,
when the judge denied his motion, pled guilty. People v. Evans, supra. The judge “suspended imposition of sentence
and placed [Evans] on probation for three years subject to specified terms and
conditions.” People v. Evans, supra.
On appeal, Evans raised only one
issue: that “the trial court erred in denying his motion to suppress video
files found in a search of his computer because the warrantless search
conducted by the police exceeded the scope of a prior private search and
therefore violated `a subjective expectation of privacy that society recognizes
as reasonable.’” People v. Evans, supra.
The Court of Appeals begins its
analysis of that issue by explaining how the case arose:
On September 27,
2011, [Evans] brought his computer to Sage's Computer in Fort Bragg for
servicing. In the course of working on the computer, Sage Statham viewed images
on the computer of what appeared to him `to be underage girls engaged in sexual
activity.’ Statham felt it appropriate to call the Fort Bragg Police Department
to inquire whether these materials were `something that they should be looking
at.’
Officer Brian
Clark, who responded to the phone call and viewed the files at Statham's
computer repair shop, stated that although the girls in the photos he viewed
were posing in a sexual manner, none of them were nude or `engaging in sexual
activity or simulating any sexual activity.’ Indicating he did not consider the
images pornographic, Clark asked Statham whether he `could search through and
look at’ anything else in the computer.
After further
examining [Evans’] computer files, Statham found video files he had not
previously noticed. When directed by Clark to open these files, Statham tried
to but was unable to do so. Statham was . . . able to put the video files on a
USB flash drive, which he gave to Clark. Clark took the flash drive
to the Fort Bragg Police Department. When he was unable to open the files on
his own computer, Clark gave the flash drive to Sergeant Lee, who was able to
open and view the videos it contained. Lee informed Clark that he considered
the videos `juvenile pornographic material.’ Clark, who also viewed the videos,
described them as depicting `[f]emale juveniles engaged in sexual activity.’
The next day [Evans’] computer was seized by Officer Lopez.
People v. Evans, supra.
In his motion to suppress, Evans
sought suppression of the evidence and also demanded that the prosecution “produce
at the suppression hearing `any and all search warrants and arrest warrants
relied upon by the prosecution to justify the searches of [his] property.’” People v. Evans, supra. The prosecutor argued that the motion to
suppress should not be granted “`for two independent reasons.’” People v. Evans, supra.
First, the evidence
was not obtained by [Statham] illegally, and hence the 4th Amendment does not
apply. Second, [Evans’] expectation of privacy was destroyed once Statham as a
private citizen[ ] made the search and revealed his findings to the police;
hence any additional investigation by the police of additional ‘folders' on
that same computer was not the `fruit of any poisonous tree.’ At no time prior
to the challenged searches of Evans’ computer had the police obtained a search
warrant.
People v. Evans, supra.
In denying Evans’ motion to suppress,
the trial judge considered whether Statham would
`be justified in
calling Officer Clark over to view the entire contents of Evans computer? Put
another way, does a person completely forfeit their [sic] expectation of
privacy in the contents of their computer when they take it to the store to get
repaired?’ The trial judge stated the answer to his rhetorical question lay in
the fact that Evans only had a reasonable
expectation of privacy in the contents of his computer's hard-drive. Evans
did not create a confidential relationship with Statham akin to an
attorney-client relationship when he entrusted his computer to Statham. Thus,
any reasonable expectation of privacy [he] had in the content of his hard-drive
would be eroded in proportion to any legitimate suspicion arising from what
Statham discovered in the course of working on the computer. If all Statham found
were images of kids riding a pony at a birthday party, it would be reasonable
for Evans to expect the content of his computer would not be shared with law
enforcement.’
`However, this
expectation is not so reasonable when the images are such as to cause Statham
to believe . . . he has discovered child pornography. Nor is it reasonable for
Evans to demand that Statham conclusively determine the images meet the legal
definition of child pornography before involving the police. . . . There is no
requirement that citizen informants validate their suspicions of criminal
conduct before reporting them to the police. By turning his computer over to
Statham, Evans diminished the scope of his reasonable expectations to privacy.
Figuratively, he was ‘hanging his dirty laundry out to dry’ by handing it over
to a third party he knew was going to take a look at it. The discovery of the
sexually charged images of children only further eroded his expectation of
privacy. Under these circumstances, it was not unreasonable for Statham to
involve law enforcement.’
People v. Evans, supra (emphasis in the
original).
As this post explains, the 4th
Amendment does not apply to the actions of private citizens unless the private
citizen has become an “agent” of law enforcement, i.e., has decided to search
property to “help out” the police. Basically, the judge was arguing that the
private search doctrine applied to all
of the searches of Evans’ computer, not just to Statham’s search of its
contents. Like other Constitutional
protections, such as the 5th Amendment and the 6th
Amendment right to counsel, the 4th Amendment only protects citizens
from government actions that violate the protections it provides for them.
So, if a private citizen searches
your computer and finds evidence of a crime, he or she can turn that evidence
over to the police and nothing in what happened would violate the 4th
Amendment because law enforcement was not involved either in the search or in
the private person’s turning the computer over to the police. And if the private person took your computer
without your permission, that would be a 4th Amendment “seizure,”
but you could not use the 4th Amendment to suppress the evidence
because the police were not involved in the seizure.
Here, the trial judge, relying on the
reasoning outlined above, therefore denied Evans’ motion to suppress because he
found that
`Clark's searches
of the videos (both when he first met with Statham, and later at the [Fort
Bragg Police Department]), were simply more thorough searches of the hard-drive
‘container’ that Statham had already opened. Evans' expectation of privacy in
his hard-drive, which included the video files, had already been frustrated
when he turned his computer over to Statham. Such searches are not in violation
of the 4th Amendment, and thus, suppression of the videos is not mandated.’
People v. Evans, supra.
The Court of Appeals did not agree,
explaining that before Statham contacted the police,
[he] saw
photographic images on [Evans’] computer that Clark determined were not
pornographic. . . . Statham did not examine the materials he placed on the
flash drive at any time prior to or after contacting the police. A warrantless
police search certainly cannot be undertaken under the 4th Amendment where, as here,
the private searcher had not determined the illicit character
of any images and, further, was unable to view the materials stored in a
computer even after police directed him to open those files and to place them
on a USB flash drive. Accordingly, the subsequent search of the flash drive by
Officers Clark and Lee clearly exceeded Statham's prior private search.
People v. Evans, supra. If the Clark and Lee searches exceeded the
scope of Statham’s prior search(es), they would not fall within the private
search doctrine, and consequently would violate the 4th Amendment.
But as the Court of Appeals pointed
out, the trial judge concluded that the
materials placed by
Statham in a USB flash drive were contained in the `hard-drive’ of [Evans’]
computer, and treated that hard drive as the functional equivalent of, or
analogous to, a closed container. On these grounds, the trial court reasoned
that `[Officer] Clark's searches of the videos . . . were simply more thorough
searches of the hard-drive “container” Statham had already opened. Evans'
expectation of privacy in his hard-drive, which included the video files, had
already been frustrated when he turned his computer over to Statham. Such
searches are not in violation of the [4th] Amendment, and thus, suppression of
the videos is not mandated.’
People v. Evans, supra.
Again, the Court of Appeals did not
agree, noting that the
fundamental flaw in
the trial court's ruling relates to its assumption that a computer hard drive
can properly be considered a `closed container,’ as that term is sometimes used
in applying the 4th Amendment. . . .
Noting that a
`container’ has been defined as `”any object capable of holding another
object,”’ the U.S. Supreme Court has recently observed that `[t]reating a cell
phone as a container whose contents may be searched incident to an arrest is a
bit strained as an initial matter. . . . But the analogy crumbles entirely when
a cell phone is used to access data located elsewhere, at the tap of a screen.
[This] is what cell phones, with increasing frequency, are designed to do by
taking advantage of `”cloud computing.”’
`Cloud computing is
the capacity of Internet-connected devices to display data stored on remote
servers rather than on the device itself. Cell phone users often may not know
whether particular information is stored on the device or in the cloud, and it
generally makes little difference.’ . . . Riley v. California, 134 S.Ct. 2473 (2014). . . .
The Court further stated: `Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they hold for many
Americans “the privacies of life”’. . . . The fact technology now allows an
individual to carry such information in his hand does not make the information
any less worthy of the protection for which the Founders fought. Our answer to
the question of what police must do before searching a cell phone seized
incident to an arrest is accordingly simple -- get a warrant.’
Because, as the
Supreme Court observed, cell phones `are in fact minicomputers’, Riley v. California, supra, and the
search of a computer hard drive implicates at least the same privacy concerns
as those implicated by the search of a cell phone, there is no reason to think
conventional computers can any more reasonably be characterized as containers
than cell phones. Indeed, `[c]omputers are relied upon heavily for
personal and business use. Individuals may store personal letters, e-mails,
financial information, passwords, family photos, and countless other items of a
personal nature in electronic form on their computer hard drives.’ (U.S. v.
Mitchell, 565 F.3d 1347 (U.S. Court of Appeals for the 11th Circuit 2009), [describing `the hard drive of a computer, which “is the
digital equivalent of its owner's home, [as] capable of holding a universe of
private information”’]).
People v. Evans, supra.
The Court of Appeals therefore found
the trial judge erred in describing the hard drive
of [Evans’]
computer as a closed container. Moreover, even if . . . the flash drive may be
deemed a `closed container,’ . . . the record reflects and the trial court
found Statham did not view the materials he placed in the flash drive before he
was `directed’ by Officer Clark to conduct a more thorough search than the one
that led him to contact the police. In placing the video files in the flash
drive, Statham unquestionably `intended to assist law enforcement’ and Officer
Clark `knew of and acquiesced in’ the `private’ search Statham undertook at
Clark's direction.
People v. Evans, supra.
It therefore held that the
factual findings
made in this case, which are uncontested, indisputably establish that the
government authorities have used information in which [Evans’] expectation of
privacy was not frustrated by Statham's private search.
Accordingly, the conclusions upon which the trial court based its ruling -- namely,
that Officer Clark's and Officer Lee's searches `were simply more thorough
searches of the hard-drive “container” Statham had already opened,’ and that [Evans’]
`expectation of privacy in his hard-drive, which included the video files, had
already been frustrated when he turned his computer over to Statham’ -- are
wholly untenable. The fact that neither Statham, a computer specialist, nor
Clark were able to open the video files strongly suggests [Evans] took
precautions to maintain his privacy with respect to these materials.
People v. Evans, supra (emphasis in the
original).
The Court of Appeals therefore
reversed the trial judge’s order denying Evans’ motion to suppress and remanded
the case to the trial judge “with directions to vacate its ruling denying [Evans’
motion to suppress and to grant the motion.”
People v. Evans, supra.
(I am doing this post without adding a photo because I am in a hotel in DC and the wireless netwok simply will not let me add a photo.)
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